*1 496
Argued.February reargued 4, June reversed and remanded October
EBERLE v. BENEDICTINE SISTERS OF
MT. ANGEL et al 2d
385 P. Edward L. Clark, Jr., and Cecil H. Quesseth, Salem, *2 argued appellant. the cause for theOn briefs were Goodenough, Clark & Salem. Marsh, Lewelling,
Asa L. argued Salem, the cause for re- spondent Oregon. Archdiocese of Portland in On the Lewelling brief were & G-ies,Salem. argued
Bruce W. Williams, Salem, cause for respondent Angel. Benedictine Sisters of Mt. On the Skopil brief were Williams & and Al J. Laue, Salem. Before Chief Justice, McAllister, Rossman, and Lusk, Justices. Perry, Sloan, Goodwin, Denecke DENECKE, J. damages against
This is an action for the owners operators private 13-year-old of a school. The plaintiff-student injury received a hand when he at- tempted open slipped to hold a door and his hand off against glass panel in the door and broke bar, it. The trial court directed verdict for defend- ants. occurred in 1960 at the front
The accident exit The exit doors of Paul’s School. consists of St. opens outward at the wooden door which center. double glass panels panic contain with a The doors several part running middle of the bar across the four door, panel glass. the lowest below and one-half inches panic pushed bar is door the downward. To occurred when his The day. leaving at the end of the Plain- classmates carrying tiff was books in his left hand and was fol- lowing through another student the left door. Accord- ing plaintiff, to the gone the student ahead of him had starting swing out the door and it was back shut. right Plaintiff testified reached he out with his hand push against swing bar to halt the reopen slipped door and it. His hand off the hit glass panel, broke it and cut his hands The defendant Archdiocese owns the school. It is operated by the defendant Benedictine Sisters. principal following allega- issue concerns the negligence: tion of glass failing plate in the front to install
“8. In properly being pupils or otherwise used breaking said keeping doors; from [*] # * J3 panel was constructed was broken glass. plate glass, strength” “double *3 in error court was the trial that
It is concluded directing the defendants. a for verdict testimony from was there that conclude
We prudent reasonably jury find that could which double-strength that know school administrators panels were unsafe. door or busi an invitee the status has Or Briggs 239, Co., Yeon v. John visitor. ness §332. As Torts 897, 2 Restatement 444; 122 P2d duty of reasonable him a owe the defendants such, building. of the maintenance the construction care in 49, 45, Hotel, Inc., 191 Or Multnomah v. ow G 224 P2d P2d 791. § a, states 343, Comment Torts 2 Restatement duty a licensee owed between distinction follows: as visitor business ** “* expect noth- to entitled is a licensee ing more than an honest disclosure of the dangers * * * which are known to the possessor. Such a [business] visitor is entitled to expect that possessor will take reasonable care to discover actual condition of the premises and either make them safe or warn him of dangerous [*] [*] conditions. Comment f states: “A possessor who holds his land to others
for his own business purposes, must possess and exercise of the knowledge dangerous qualities itself and place the appliances provided therein, is not required his patrons. * * * This is so because the house boarding even a man keeper, though of the same class as - his 1mowl boarders, required have superior edge incident dangers to the facilities which he furnishes to them.”
An architect
as a
was called
witness
plaintiff.
He testified he was familiar with school construction
1952. He
since
stated that
Valley
Willamette
the “standard
in doors of
usage
public
from private
homes
buildings,
distinguished
gen-
area”
He
plate glass.
in this
was
erally
quarter-inch
four
quarter-inch plate glass
further
He
double-strength
glass.
gave
times as
strong
thickness
minimum safe glass
opinion
would be one-quarter-inch plate
Paul School
St.
“from a breakage standpoint.”
safety
was for
and this
any testimony
when
Ordinarily,
used
standard
up
and not
is unsafe
material
whether or not
a jury question
it is
community
*4
reasonably pru
material,
such
using
the persons
material
is unsafe.
that
know
should
dent persons,
Law
James,
and
2 Harper
in
collected
See cases
at 916.
the text
16.5,
907, §
Torts,
point
However, as
this'.'general
defendants
out,1
proposition
inapplicable Doherty
was found
v. Ar
cade Hotel,
At possess buildings metal handles is most industry’s prac- repetition nothing than more experi- common the voice distinguished from tice in- already pointed even out, have weAs ence. porcelain -to practice adversé dustry formed had plaintiff’s years before fewa until handles *5 occurred. Further, mere fact that metal handles gained.wide had favor necessarily does not indicate n those who chose porcelain them condemned handles as unsafe. appearance, availability Price, the desire something for may new have been the im- pelling motives.” specific testimony
Here, is that the standard glass for public buildings at least four strong times as as that used in the door of St. Paul’s School and insertion of this is common usage. The reason price, for this was appearance, not safety. etc., but
Apart testimony respective from the about the porcelain and metal handles there was evidence in Doherty porcelain case that handles which were apt they to break could be identified before broke. A plumber testified: “If the handle is not checked or say danger (170 I would there was no cracked, to it.” supra, 379) at Or, The maids who cleaned the room daily and used the handle observed no defect in it. occupied did the who had Neither the room days one month before accident. No com- present parable this case. evidence controlling. Doherty not There case is was evi- The negligent. dence here that defendants Benedictine Sisters contend that defendant buildings, they they are the owners of are not panels. responsible condition of the door for the not superintendent schools for the Archdiocese operated Benedictine Sisters repairs Archdiocese. He stated school for the plant joint responsibility physical awere the Benedictine Sisters. This evidence Archdiocese responsibility of the Benedictine thé Sisters makes jury. question for the
The other actions of the trial court which charges were incorrect are found to in error.
Judgment reversed and remanded. dissenting.
PERRY, J., my agree I am unable to interpre- with associates’ applicable tation of the evidence and the law thereto majority opinion. as set out in the *6 years injury plaintiff At the time of the was 13 old. attending He was aas student St. Paul’s Parochial Oregon. injury near School located The Silverton, along plaintiff, occurred when with other members leaving building the school at his was the end class, day on March The of the school school’s front 15,1960. opened wooden door which of a double consisted exit The contained at the center. doors four outward panels panels. four or five inches These above by opened. which the door was the mechanism opened by was a the door was to be which mechanism by exerting pres- extending and the door, across bar the latch was lifted manner, in a downward sure The bar which was outward. the door pres- always when downward hinged went that it so panic as a bar. applied described was was sure following another he was that Plaintiff door was clos- opened that the boy door; had who panic for he reached ing that it; reached he level”; “stomach at his less” “more or was bar, un- slipped some of the off hand his that through upward way, went explained panic or bar was, that evidence no There is door. move down- failed to slippery, that it been had ever applied. was pressure when ward allegation only of the com- majority discuss “failing to negligent in defendant plaint plate glass install being front by used pupils.” they I agree therefore assume with me there is support no evidence plaintiff’s allegations negligence, other “maintaining such as a defective bar and latch on said door.” agree I that the was at the time of his premises an invitee on the operated owned and by the defendants. f
Comment § of 2 page Eestatement of Torts, 343, to which majority, reference is made has application whatever to this case. Comment f, as subject example, shown “Ap- and the deals with pliances “providing gas used on land” such as stove to be used an unventilated bathroom.” There is no any appliance being evidence in this case of furnished might injury. to the for his use that cause question glass panels The sole whether door with integral part premises used an constituted dangerous condition. Section 343 of the Eestatement chapter page at Torts, is as follows: possessor subject liability “A of land is for *7 bodily by harm to a natural caused business visitors only or artificial condition thereon he if, if, but by (a) of care knows, or the exercise reasonable the condition if which, discover, could involving realize as him, he should known to them, to risk an unreasonable they (b) will dis- reason to believe has no in- or realize the risk condition cover therein, volved permits remain
(c) them to enter or or invites exercising reasonable upon the land without care reasonably safe, (i) condition make the to or adequate warning enable to give (ii) a to relin- harm without avoid to them 504
quisling any
they
of the services which
possessor
are entitled to
if
receive,
public utility.” (Emphasis mine.)
a appli
This is the rule of law followed
this state as
in
public places
public
to
cable
which
is invited to
use. Gow v. Multnomah Hotel, Inc., 191 Or
P2d 552,
and are sibility only hazards those of an but accident, position person reasonably prudent reasonably anticipate required to be could defendants proper premises manner the use of from Oregon, P. Terminal Co. pupil. v. N. Waller upon evidence there is no That P2d 488. Or the record this case. is demonstrated this fact if door iota of evidence an First, it was intended that in which the manner used in opening, holding it or either in used, be should it glass, constituted nature, its open, whatever that the any be- Therefore, the door. any user hazard any nature that the said it can fore that the first be shown negligence, must it constituted known, used was door was in which manner as reason- defendants, to the known, teen have should using of an school, so operators of the able con- circumstances these glass under inferior *8 stitute using hazard to those the door such a manner. absolutely
There is no evidence that this door, by usage, or custom, occasional or even once, was opened, open, or held or forced back it as tended to placing close, the panels, of on hands the charge so as to knowledge these defendants with glass panels might use inferior constitute hazard to using school children thus the door. attempting testified that he was to open closing proper further the door in the manner, by exerting panel force on the bar, so there imputed knowledge proclivities issue of of children’s depart by applying to from adult standards of conduct glass. force to the There is no evidence that the door attempting was so constructed that in to or it, open, push open, by proper hold it or it further panic any danger coming bar, there was into glass panel. certainly contact with the It necessary danger using panic show bar, with glass panels located, reference to the or defective reasonably charge prudent the defendants as bar, using persons being negligent glass. with an inferior negligence of defendants’ then must rest The issue panic upon proposition, bar either that was so panels presented a on the door that located using panic danger or the to those source going panic instead of down- defective that bar so stationary, means the some ward remained it slip upward. might possibly is no evi- There hand of these facts. to establish either the record dence in panic bar was four establishes the record First, pre- any glass panels, and second, below inches five viously stated, pushed waist-high; if downward,
bar was *9 force exerted the hand at level from then position to a on the shoulder downward the door glass. This is in accordance where there is no with contrary physics, pre- the established law sumption engaged in. before the Therefore, can competent as a be considered nature could necessary just it first condition, and not was factor upon jury could find fact some to establish reasonably prudent per- of the door, that in the use danger know, know, or should son would holding opening, open, glass in the contact with open, pushing use of the the door further upon by relied all of the evidence However, bar. this evidence majority, considered, if it could be only goes safer, it my opinion the fact that plate glass negligent than to use act, some case of double-strength glass school doors. reversing majority this case my opinion
In bridge I built. there- it was before have crossed fore dissent. Justice Justice Mr.
Mr. Chief McAllister join dissent. in this Rossman